From Casetext: Smarter Legal Research

Commonwealth v. Uberti

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 23, 2012
No. 10-P-1845 (Mass. Apr. 23, 2012)

Opinion

10-P-1845

04-23-2012

COMMONWEALTH v. JOHN UBERTI.


NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial in Superior Court, defendant John Uberti was convicted of arson of a dwelling house, G. L. c. 266, § 1, and burning a building with intent to defraud an insurer, G. L. c. 266, § 10. Because the trial judge's instructions invited the jury to convict on a theory of guilt for which there was insufficient evidentiary support, we reverse.

Because we reverse on this ground, we need not consider the defendant's other claims of error.

The evidence at trial showed that the defendant and his friend Michael Benevento were alone at the defendant's house in Wilmington on October 11, 2004. At around 8:00 P. M. that evening, the two men left for Connecticut, locking the house behind them. No one else had a key to the house, and there was no evidence of forced entry. The following day, the defendant's stepson came by the house and observed smoke through the window. He called the fire department, and investigators determined that there had been a fire in the basement of the house. The Commonwealth presented expert testimony from which the jury reasonably could have concluded that the fire had been intentionally set. The jury also reasonably could have concluded that the defendant was the only person with both a motive to burn down the house and access to start the fire.

Section one of c. 266 of the General Laws provides that '[w]hoever wilfully and maliciously sets fire to, burns, or causes to be burned, or whoever aids, counsels or procures the burning of, a dwelling house . . . shall be punished.' At a charge conference after the close of all evidence, the trial judge, on her own initiative, expressed an intention to charge separately on each of the two 'theories' enumerated in the statute (essentially, principal and accomplice liability). Defense counsel objected on the ground that the evidence was insufficient as to the second theory (an objection which she renewed after the judge finished instructing the jury). The judge did not dispute this characterization of the evidence, but replied, 'I'm not sure that I even have discretion because that's what the statute says.' This was error. In a decision issued several months prior to the defendant's trial, the Supreme Judicial Court made clear that when instructing a jury on the elements of arson, '[i]t would only be appropriate to include (in the description of the acts that may constitute the crime of arson) those specific acts set out in the arson statute for which there is sufficient evidentiary support to warrant a finding of guilt beyond a reasonable doubt.' Choy v. Commonwealth, 456 Mass. 146, 153 n.10 (2010). A trial judge has not only the discretion, but the obligation to instruct the jury only on the language in the statute upon which they may lawfully base a conviction.

The Commonwealth had not requested an instruction on the second theory, and took no position at trial as to its propriety.

The judge's instructions were thus proper only if the evidence was sufficient to convict the defendant under either theory of arson. However, the evidence in this case pertaining to the defendant's friend, Benevento, was quite similar to, and no greater than, that found insufficient to convict the codefendant Patrick Clarke in Commonwealth v. Jacobson, 19 Mass. App. Ct. 666 (1985). As in Jacobson, the evidence here of Benevento's presence at the scene and of his friendship with the defendant 'is too meagre . . . to provide a basis for [a] conviction.' Id. at 675, citing Commonwealth v. Murphy, 1 Mass. App. Ct. 71, 77 (1973). Because there was insufficient evidence to connect Benevento to the crime, and no evidence that any other person could have been involved, there was insufficient evidence to convict the defendant of 'aid [ing], counsel[ing] or procur[ing]' another person to set the fire. The judge's instruction on this theory of guilt was error.

Because the jury returned a general verdict of guilt, it is impossible to know which theory was the basis of the verdict. It is the 'established rule [of this Commonwealth] that there must be evidence to support each alternative theory submitted to the jury to uphold a general verdict of guilty.' Commonwealth v. Plunkett, 422 Mass. 634, 639 (1996). 'The possibility that the verdicts were based on theories for which the Commonwealth failed to offer sufficient evidence for a rational jury to find guilt beyond a reasonable doubt necessitates our setting them aside.' Id. at 635, quoting from Commonwealth v. Green, 420 Mass. 771, 781 (1995).

We recognize that the Supreme Judicial Court has held that when examining the sufficiency of the evidence in a case where the jury returned a general verdict of guilty after being charged on both principal and joint venture liability, the reviewing court should 'examine whether the evidence is sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, with the intent required to commit the crime, rather than examine the sufficiency of the evidence separately as to principal and joint venture liability.' Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). However, notwithstanding the court's statement in Zanetti that 'principal and joint venturer liability are not different theories of guilt,' id. at 464-465, the Supreme Judicial Court in Choy v. Commonwealth, supra, later analyzed the two 'theories' of arson in c. 266, § 1, as separate theories of guilt, both of which must be supported by the evidence in order to justify submitting them to the jury. See Choy, 456 Mass. at 152. As in Choy, the Commonwealth here 'did not seek to convict the defendant as a joint venturer at the . . . trial. The Commonwealth did not suggest a joint venture in the opening statement, presented no evidence of a joint venture, and requested no joint venture instruction.' Id. at 155-156 (Cowin, J., dissenting). We are thus constrained to conclude that the judge's instructions in this case, like the judge's answer to the jury's question in Choy, 'invited the jury to convict the defendant under a theory for which there was insufficient evidentiary support, and [were] therefore erroneous.' Id. at 152 (majority opinion).

In its brief, the Commonwealth made a passing 'compare' cite to Zanetti, but it did not argue that the conviction can be upheld on this ground.

In any event, the defendant was not provided a charge consistent with the principles laid out in Zanetti. The court in Zanetti was very clear that the Commonwealth retains the burden of proving that a defendant 'had or shared the required criminal intent' for the crime at issue. Zanetti, supra at 467. The model jury instruction set out in that opinion's appendix includes an entire paragraph emphasizing the Commonwealth's burden to prove the mens rea required for the offense. Id. at 470. By contrast, the judge here instructed the jury that the three elements of the 'second theory' of arson are (1) 'that the defendant intentionally aided, counseled or procured'; (2) 'a burning'; (3) 'of a dwelling house.' Because the judge did not include malice as an element of the 'second theory' and instructed the jury that the defendant was guilty if 'each element of the second theory' was satisfied, the jury could have convicted the defendant without finding that he acted with malice, as required by the statute. G. L. c. 266, § 1. The judge's instruction thus permitted the jury to return a guilty verdict without finding that the defendant acted with 'the intent required to commit the crime,' and was defective even under the Zanetti standard. Id. at 468.

The jury were separately instructed on G. L. c. 266, § 10, which contains substantially the same language as § 1 but substitutes the specific intent to defraud for the requirement that the structure burned be a dwelling house. The Commonwealth has not suggested that the defendant's conviction on that charge can stand notwithstanding error in the instruction on § 1, and we conclude that it cannot. Although the judge's instruction on § 10, taken in isolation, did not include two separate theories of liability, the import of the instructions as a whole was that if the jury convicted the defendant of arson and then found the additional element of intent to defraud, they were to return a guilty verdict on § 10. The error thus infected both convictions, and both verdicts must be set aside.

Judgments reversed.

Verdicts set aside. Matter remanded for a new trial.

By the Court (Graham, Rubin & Milkey, JJ.)


Summaries of

Commonwealth v. Uberti

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 23, 2012
No. 10-P-1845 (Mass. Apr. 23, 2012)
Case details for

Commonwealth v. Uberti

Case Details

Full title:COMMONWEALTH v. JOHN UBERTI.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 23, 2012

Citations

No. 10-P-1845 (Mass. Apr. 23, 2012)